Kansas law allowing suits against local COVID rules unconstitutional, JoCo judge rules

Expansive changes to Kansas’ emergency management laws, which allow citizens to sue over public health measures, are unconstitutional and promote “the equivalent of legal anarchy,” a Johnson County judge said in a scathing ruling Thursday.

As COVID-19 cases rise again, driven by the highly contagious delta variant, the ruling restores, for the moment, at least, the ability of local health officials to unilaterally issue orders requiring masks and restricting gatherings. It also allows Democratic Gov. Laura Kelly to issue new emergency orders without approval from Legislative leaders.

Attorney General Derek Schmidt, a Republican who is a running for governor and who advised the GOP-controlled Legislature as it drafted the bill, already plans to appeal the ruling.

“On its own volition, the district court created a controversy about the statute where none exists now that the state of emergency has ended. Attorney General Schmidt strongly disagrees with the ruling in this case. We plan to appeal to defend the validity of the statute as it was enacted by the Legislature and signed into law by Governor Kelly,” Clint Blaes, Schmidt’s spokesman, said in a statement.

District Judge David Hauber’s ruling was anticipated after a hearing last month on a challenge to the Shawnee Mission School District’s masking policy. Hauber said then he was “convinced” that Senate Bill 40, which rewrote Kansas’ emergency management laws, held “significant constitutional challenges.”

The law was passed by the Legislature in March and signed by Kelly in response to backlash against state and local measures to combat the COVID-19 pandemic.

Senate Bill 40 removed public health officer’s power to take unilateral action and subjected much of Kelly’s emergency power to Legislative approval. It also established a process that allows Kansans “aggrieved” by state, local or school board decisions during the pandemic to halt the actions by suing.

To retain their policies, governments must prove they’d used the most “narrowly tailored approach” to preserving public health. If the court failed to hold a hearing within 72 hours and rule within seven days, the policies would be removed in a default judgment.

In his ruling, Hauber said that the appeals process and time limit on the court “unconstitutionally deprives the relevant government units of due process.”

Furthermore, Hauber said the law violated separation of powers between the Legislative and Judicial branches. He ruled the entire statute invalid.

In a court filing, the Attorney General’s office argued that the challenge to the bill was moot because the state’s emergency order had expired and that previous court cases had established that government entities were not entitled to the same due process rights as citizens.

Hauber rejected the state’s position, asserting that its response had either ignored or failed to examine in depth the “glaring deficiencies” he found with SB 40.

The emergency order’s expiration was irrelevant, Hauber wrote, as most of the law would still apply if variants or other crises arose.

Local governments, he wrote, are entitled to the same due process rights as individuals because SB 40 allows them to be sued.

Hauber upbraided the Legislature for failing to collaborate with the judicial branch to ensure the bill fit within existing laws and court procedures.

As written, he said, the law flew in the face of existing time limits for judges to rule in civil cases. He added that it disregarded state supreme court rules that default judgments could only be declared if there was evidence that satisfied the court.

“It is the ultimate legislative stick intended to goad and/or supplant judicial rules and functions and it promotes the equivalent of legal anarchy,” Hauber wrote.

Because the bill “disregards the traditional role of the judiciary” the entire measure is unconstitutional and unenforceable.

Hauber cited a previous state supreme court ruling that reminded the attorneys that Kansas Rules of Professional Conduct require them to uphold the constitution.

“In other words, all attorneys, including the Attorney General, are not apologists for unconstitutional legislation,” he wrote.

Republican lawmakers criticized Hauber as an activist judge, pointing to the Democratic governor who appointed him.

“It is certainly not surprising that a Sebelius-appointed judge would engage in judicial activism by striking down provisions that give Kansans enhanced due process rights in the face of restrictions imposed by bureaucrats,” Senate President Masterson, an Andover Republican, said.

House Majority Leader Ron Ryckman rejected Hauber’s argument that the bill was hastily passed and called it disappointing that one judge could attempt to undo it.

“This legislation was carefully considered and approved by a huge bipartisan majority of the legislature and it was signed into law by the Governor,” Ryckman, an Olathe Republican, said in a statement.

As COVID-19 case rates rise in Kansas and across the Midwest the ruling has potentially major ramifications.

Gov. Laura Kelly will not need legislative approval if she chooses to issue a new emergency order and local health officials can once again act unilaterally to impose mask mandates, capacity restrictions and business closures among other public health measures.

Kelly’s office did not immediately respond to The Star’s request for comment.

Senate Vice President Richard Wilborn, a McPherson Republican and vice-chair of the Senate committee that worked on the bill, said he didn’t expect immediate impacts from the ruling.

“If it does have an impact now, this is my personal opinion, if it does have an impact it will be politically driven,” Wilborn said. “I would think this governor would be more sensible than make that kind of a move.”